Cicero : Pro Caecina

Sections 51-104

The translation is by H.G. Hodge (1927). Click on the L symbols to go to the Latin text of each section. Click on ** to go to the translator's footnotes.

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[18.] L   [51] Can it indeed be doubted that neither our own language, which is said to be deficient, ** nor even any other, contains so large a store of words as to distinguish every concept by a definite and peculiar term ; or indeed, that words are superfluous when the concept is clear for the expression of which words were originally invented? What statute, what senatorial decree, what magisterial edict, what treaty or agreement or (to speak once more of our private concerns) what testament, what rules of law or undertakings or formal pacts and agreements could not be invalidated and abolished, if we chose to sacrifice the meaning to the words without taking into account the design, the purport, and intention of the writer? [52] Why, the familiar speech of every day will not have a consistent meaning if we set verbal traps for one another. Even our authority at home will cease to exist if we allow our slave-boys to obey our orders to the letter only, without paying any attention to the meaning implied in our words. And now I suppose I must produce examples of all these points; as though indeed every one of you cannot think of some example, whether in one connexion or another, to support my plea that Right does not depend on words, but that words are subservient to the purpose and the intentions of men. [53] This opinion was supported by the great orator, Lucius Crassus, in an elegant and ample speech before the centumviral court ** shortly before I was called to the bar; ** and although the learned Quintus Mucius ** was against him he proved to everyone, and with ease, that Manius Curius, who was to succeed to an estate "in the event of the death of a posthumous son," ** was entitled to succeed although the son was not dead - never, in fact, having been born ! Well, did the wording of the will provide adequately for this situation ? Far from it. Then what was the deciding consideration ? Intention; for if our intention could be made clear without our speaking, we should not use words at all; but because it cannot, words have been invented, not to conceal but to reveal intention.

[19.] L   [54] By statute, property in land is to be determined by two years' possession ; but we adopt the same principle in the case of houses, which are not specified in the statute. By statute, if a road is impassable, a man may drive his beast by any way he likes: ** the actual words can be held to mean that if a road in Bruttium is impassable, a man may, if he likes, drive his beast through the estate of Marcus Scaurus at Tusculum. A form of action lies against a vendor, if present in court, beginning with the words "whereas I see you in court . . .": this form could not be used by old Appius Claudius ** if people kept strictly to the words without considering the meaning which it is the object of words to express. If an estate had been left by will to "Cornelius the Minor," ** and Cornelius were now twenty years old, he would lose his inheritance according to your interpretation.

[55] A great number of instances occur to me, and still more to you, I feel sure, but in order not to extend my survey unduly and not to wander too far from the point, let me deal with the actual injunction with which we are concerned ; for it will be clear to you in the case of this particular injunction, that, if we make Right dependent upon words, we shall be losing all benefit from it as long as we like to exercise our ingenuity and cunning. "Whence you or your household or your agent . . . " If your steward alone had driven me out it would not have been your household, surely, that had done so, but a member of your household. Would you then be entitled to reply, "I have restored" ? ** Certainly, for what is easier than to prove to anyone, provided he knows Latin, that the word "household" does not apply to one single slave? And suppose you actually had no other slave beside the one that drove me out, doubtless you would exclaim : "I admit that it was my household that drove you out - if I have one!" It cannot be doubted that if our judgement is to follow the letter and not the spirit of the law, we understand a household to consist of several slaves and that a single slave is not a household ; the actual word not only requires but compels this interpretation ; [56] and yet such a line of defence is rejected with contumely by the principles of law, the force of the injunction, the purpose of the praetor, the design and intention of wise legislators. [20.] L   What then? Are those I mention not speaking good Latin ? On the contrary, their Latin is good enough to make clear what was their intention when they resolved that, whether it be you who drive me out or one of your associates or slaves or friends, they would describe the slaves collectively as your household without specifying their number, [57] while describing any free person concerned as your agent: not that anyone who undertakes business for us is our agent or is so described ; but the sense in the particular case being perfectly clear, they declined to make a minute investigation of every word. For it makes no difference to the equity of the case whether one slave was concerned or more than one : it makes no difference to the legal principle - at all events in this instance - whether I was driven out by your agent (giving the word "agent" its legal sense of a man practically in the position of owner of all the property belonging to someone not in Italy or absent on State service, that is, one who possesses the rights of another as his representative) or whether it was your tenant or neighbour or client or freedman or anyone else who, at your request or in your name, effected the forcible ejectment in question. [58] Wherefore, if the principle of equity has the same force in the case of a person forcibly ejected, it is surely irrelevant, once that is established, to consider the force of words and names. You will make the same "restitution" if your freedman has ejected me, though not commissioned with any business of yours, as if your agent has: not that anyone who undertakes business for us is our agent, but that the question is in this case irrelevant. You will make the same "restitution" if it be a single slave who has done it as if it had been your entire household : not that your one slave is the same as your household, but because we are concerned, not with the wording, but with the content of each clause. And even if (to depart still further from the wording though no whit from the spirit of the law) it was no slave of your own, but all those concerned belonged to other people or were hired, even they will none the less be classed together and described as your household.

[21.] L   [59] Let us proceed with our examination of this same injunction. ''Through men collected together." Suppose you did not collect anybody but they came of their own accord. Without doubt collecting means assembling and inviting, and people are said to be collected when they have been assembled by someone into one place. Suppose that, so far from being invited to assemble, they did not assemble at all, and that the only people concerned were those who had habitually frequented the place before the occurrence for the purpose not of using force but of tillage and pasturage: you will then raise the plea that there had been no collecting together of men, and on the verbal issue you will secure the verdict though I myself be your judge ; but in point of actual fact you will not even be able to stand your ground whoever your judge may be. Our legislators intended restitution in cases of force employed by a number of persons and not only when those persons had been collected together; but because it is usual to collect people when numbers are needed, the injunction was framed to deal with "men collected together." So that, even though there seems to be a verbal difference yet it will be one and the same thing, and the effect will be the same in all cases where the principle of equity is seen to be one and the same.

[60] "Or armed." What shall we say of that? Whom, if we wish to speak good Latin, can we properly style armed men? Those, I suppose, who are provided and equipped with shields and spears. Well, suppose you have used clods, or sticks, or stones to drive a man headlong from his farm and are ordered to restore "him whom you have driven out by means of armed men": will you say, "I have restored" ? ** If it is words that count, and phrases rather than principles that carry weight in a case, then you have my leave to say it. You will doubtless establish your point that those who threw stones picked up by themselves from the ground were not armed men, that clods and turf are not arms, nor were those "armed" who broke off a branch in passing: that arms are, by their definition, some for defence, some for offence ; and you will establish your point that men who had no such weapons were unarmed. [61] If "arms" form the subject of a suit, ** then by all means bring those points forward ; but where the subject of the suit is law and equity, beware of taking refuge in so poor and empty a subterfuge. For you will not find a single judge or assessor who will accept the term "an armed man" only in the sense suitable to a military arms-inspection : on the contrary, those who are found in possession of the means to cause death or physical hurt will on those grounds be held to have been armed to the teeth.

[22.] L   [62] In order that you may better understand how unimportant are mere words, suppose that you or anyone else had attacked me singly with sword and shield and I had been thereby driven out, would you dare to say that the injunction specifies armed men but here there was only one armed man? I do not believe you would have the effrontery. And yet, take heed that your effrontery in the present case be not far greater. For in the imaginary case you might have appealed for pity to all the world because, in dealing with your suit, the court was forgetting its Latin and holding unarmed men to be armed men, and because, while the injunction specified more than one man, and the deed was done by one only, the court was holding one man to be more than one. ** [63] But in the present case the issue before the court is not one of words but of the actual facts which caused these words to be employed in the injunction. It was intended that "restitution" should be made for the use of force in every case without exception affecting human life ; and this usually comes about through the collecting and arming of men : if force were used with a different intention but with the same dangerous result, the same law was intended to apply. For the wrong done is no greater whether it was your household or your steward, whether your own slaves or slaves that you had borrowed or hired, whether your agent or your neighbour or your freedman, whether it was by men collected together or by casual helpers or even by your regular staff, whether by armed men or by unarmed, provided that they were as capable as armed men of inflicting hurt; whether by one armed man or by more than one. For it is those means which are usually employed to produce force that are correspondingly specified in the injunction : if other means are used to produce it, even though not included in the terms of the injunction, they come none the less within the meaning and purport of the law.

[23.] L   [64] I come now to that argument of yours, "I did not drive him out of the farm for I never let him reach it." I believe you realise yourself, Piso, how much more quibbling and inequitable such an argument is than it would be to argue "they were not armed men: they only had sticks and stones." I swear that if I, poor speaker that I am, were offered the choice of maintaining either that a man is not driven out when opposed by force of arms in the act of entering, or that those were not armed men who had neither shields nor swords - as for establishing it I should find either proposition weak and unsubstantial enough, but as for making a speech, I think I could find something to support the second proposition, that is, that those were not armed men who had nothing by way of sword or shield; but I should indeed be at a loss if I had to maintain that a man who has been put to rout and to flight is not driven out.

[65] Then there is that statement of yours - the most astounding thing, I thought, in the whole of your defence - that we ought not to defer to legal authorities. ** This is not the first occasion on which I have heard it said nor have I heard it only in this case ; but why you should say it I am completely at a loss to know. Most people betake themselves to an argument of that kind when they feel that they have in their case some fair and just contention to maintain : if they are met with an appeal to the wording and the letter or, as the saying goes, ** to "the utmost rigour of the law," they usually counter unfairness of that kind with the honourable and weighty plea of fairness and justice. Then it is that they pour scorn on the formulas with their "ifs" and "if nots," cry shame on verbal catches and the snares involved in a letter, and loudly protest that a case must be decided by what is fair and just and not by legal trickery and cunning. "A false accuser," they say, "adheres to the letter of the law, a good juror to the meaning and intention of him who framed it." [66] But in this case of yours, when you are the one whose defence is based upon the strict letter of the law; when it is you who take the line: "Whence were you driven out? From a place which you were prevented from reaching ? You were driven away, not driven out" - though it was you who said, "I admit that I collected men together; I admit I armed them ; I admit I threatened you with death ; I admit I am liable under this actual praetorian injunction as far as its intention and fair interpretation are concerned ; but I can take shelter behind a single word which I find in the injunction : I have not driven you out of a place which I have prevented you from entering" - when that, I say, is your defence, your ground of complaint against the authorities is the opinion they record that we should be guided by the spirit and not by the letter of the law. [24.] L   [67] And in this connexion you remarked that Scaevola lost his case in the centumviral court ; but I have already reminded the court ** that when he took the same line as you (though he had some reason for doing so and you have none) he failed to commend his arguments to anybody because it appeared that he was using the letter to assail the spirit of the law.

I am indeed surprised that you should have taken this line in the present instance - at the wrong moment and against the interests of your case ; and it is equally surprising to me to find the same argument, that neither should the authorities ** be followed nor should the law invariably be allowed to decide the case, commonly maintained in trials and not infrequently by able men. [68] For if those who maintain this view assert that the authorities are wrong on some point, that is no reason for saying that no attention should be paid to the authorities, but that no attention should be paid to foolish individuals. But if they admit that the opinions given by the authorities are right and still say that judgements should be at variance with them, they are stating that wrong judgements should be given. For it cannot possibly be right that the judgement of the court and the opinion of the authority should differ on a point of law or that anyone should be accounted a legal authority if what he decides to be law ought not to be followed in the law courts. [69] "But the courts have sometimes gone against the authorities." Have they, in the first place, done so rightly or wrongly ? If rightly, that was law which the court laid down: if otherwise, there is no doubt which deserve abuse, the jurors or the authorities. In the next place, if a court has decided some doubtful point of law, it is no more going against the authorities in giving a ruling of which Mucius ** did not approve, than it is relying on them in deciding conformably with the view of Manilius. ** Why, Crassus himself did not take the line he did in pleading before the centumviral court, in order to disparage the authorities, but to convince the court that the point which Scaevola ** was maintaining was not law; and in addition to the arguments he adduced to support his contention he went so far as to quote the authority of many learned men, including that of his father-in-law, Quintus Mucius.

[25.] L   [70] For he who thinks that the law is to be despised is sundering the bonds which maintain not only judicial procedure but the well-being and life of the community ; while he who finds fault with the interpreters of the law by calling them bad lawyers is aspersing the individuals and not the law. But in thinking that, though good lawyers, they deserve no attention, it is not the individuals that he is injuring: he is undermining law and justice. Wherefore you must needs adopt this conclusion, that no institution in our state deserves to be so carefully preserved as the law. Abolish law and there can be no means whereby the individual can ascertain what belongs to him and what to other people: there can be no universal and invariable standard. [71] And so it often happens in the ordinary disputes that come before a court, when it is a question of whether something is or is not a fact or whether an allegation is true or false, that a false witness is suborned, forged documents are put in and sometimes, under the guise of fair and honest dealing, an honest juror is deceived or a dishonest juror afforded the chance of giving the impression that his wrong verdict, which was really intentional, was the result of his having been guided by the witness or the documents. In a question of law, gentlemen, there is nothing like that - no forged document, no dishonest witness ; and even undue influence, which is all-powerful in public life, is here, and only here, inoperative ; for it has no chance of getting to work, no opportunity to tamper with a juror, no means even of raising a finger. [72] For a man of more presumption than decency may say to a juror, "Give judgement that this took place or never took place : credit this witness, admit these documents" ; but he cannot say, "Decide that a will is not invalidated by the subsequent birth of a son to the testator : give judgement that a promise is binding when made by a woman without the sanction of her trustee." ** No man's power, or influence either, can affect the decision in such a matter ; and further - to show how exalted and inviolable the law is - not even money can corrupt a juror in such a connexion. [73] That very witness of yours ** who dared to pronounce a man guilty when he could not possibly have known even the charge against him, even he would never dare to give judgement that, if a woman settles her dowry on her husband without proper sanction, the settlement is binding.

[26.] L   How splendid a thing is the law, gentlemen, and how worthy, therefore, of your protection ! How may we describe it? The law is that which influence cannot bend, nor power break, nor wealth corrupt ; if law be overthrown, nay, if it be neglected or insufficiently guarded, there will be nothing which anyone can be sure either of possessing himself or of inheriting from his father or of leaving to his children. [74] What does it profit you to possess a house or an estate left to you by your father or legitimately acquired in some other way, if you are not certain of being able to keep that which the law of ownership ** now makes yours, if the law be inadequately safeguarded and if our public code be unable to maintain our rights in the face of some private interest? What advantage is there, I say, in having an estate if all the rights fittingly prescribed by our forefathers in connexion with boundaries, possession, water, and roads can be upset or changed on any consideration? Believe me, the property which anyone of us enjoys is to a greater degree the legacy of our law and constitution than of those who actually bequeathed it to him. For anyone can secure by his will that an estate comes into my possession ; but no one can secure that I keep what has become mine without the assistance of the law. A man can inherit an estate from his father, but a good title to the estate, that is, freedom from anxiety and litigation, he inherits not from his father but from the law. Rights of water, drawn or carried, rights of way for man or beast, he derives from his father, but he derives from the law his established title to all these rights. [75] Wherefore you ought to hold fast what you have received from your forefathers - the public heritage of Law - with no less care than the heritage of your private property; and that, not only because it is the law by which private property is hedged about, but because the individual only is affected if he abandons his inheritance, while the law cannot be abandoned without seriously affecting the community.

[27.] L   So in the present case, gentlemen, if we fail to establish that a man who is proved to have been repelled and routed by force through armed men, has been "driven out by force through armed men," Caecina will not lose his property, though he would bear the loss bravely if it so fell out : he will fail, for the moment, to recover possession of it, and that is all. [76] It will be the cause of the Roman people, the rights of the commonwealth, the property, the fortunes, and the claims to possession of us all which will again be brought into doubt and uncertainty. Yours will be the responsibility for a decision and an ordinance in these terms: "With whomsoever you subsequently have a dispute over possession, you will be bound to 'restore' him only if you have driven him out after he has entered on the estate : but if, while he is in the act of entering, you meet him with an armed multitude and, while he is thus approaching, drive him away, put him to flight and turn him back, you shall not 'restore' him." If it be the voice of law which declares that force consists not only in killing but in intention to kill, and the voice of lawlessness which declares that there is no force where no blood is seen to flow; if it be law which claims that a man is driven out if he is debarred from entering, and lawlessness, that no one can be driven out except from a place on which he has set foot; [77] if it be law which deems that the first consideration should be the substance, the meaning, and the spirit of the law, and lawlessness that it should be twisted round to suit the terms and the letter; then do you, gentlemen, decide to which of these two voices belongs more of honour and of expediency.

Now it happens most conveniently at this point that there is absent from the court one who was here but recently and who has been a regular attendant throughout this case - I refer to that distinguished man, Gaius Aquilius. If he were present, I should be nervous about referring to his soundness of character and of judgement ; both because he would be embarrassed at hearing his own praises and because a similar feeling of embarrassment would deter me from praising him to his face. His is the authority to which I am told by the other side that undue deference must not be paid. Of such a man I am not afraid of saying more than you yourselves feel or would like to have recorded ; [78] and so I will say this, that undue weight can never be attached to the authority of one whose judgement Rome has seen to be exercised in protecting, not in deceiving, her citizens ; whose conception of law has never been divorced from equity ; whose ability, industry and integrity have been, through all these years, ready and accessible for the service of the Roman people ; who, as a man, is so just and good that he seems to be a jurist by nature rather than by training ; whose wisdom and good sense suggest that the study of law has begotten in him not only some mere knowledge but goodness also ; whose ability is so great and his integrity so apparent that whatever you draw from such a source you feel to be clear and pure.

[79] Wherefore you are entitled to our profound gratitude when you say that he is the authority on whom we base our defence. I am indeed astounded to hear you say that you deem it a point against me whey you describe him as the authority on my side, a partisan of mine.

However, what says the authority you claim as yours? "In whatever terms a proposal or a pronouncement has been framed . . . " [28.] L   I have met personally one lawyer at least of that persuasion, the very man, I believe, whom you quote as the authority responsible for the arguments of your defence. He started to argue with me your contention that no one could be proved to have been driven out except from a place in which he had been, and made me the admission that the substance and the meaning of the injunction were on my side, though he held that there was no getting away from its actual terms. [80] I quoted many instances, including ancient precedent, to show that the justice and the principle of right and equity were very constantly at variance with the actual wording of a law, and that decisions had always been based on the interpretation which was the best supported and the most equitable. Whereupon he consoled me by pointing out that in this particular case I had no reason for anxiety, for the actual terms of the wager-at-law were in my favour if I would consider them carefully. "How so?" I said. "Because," said he, "Caecina was undoubtedly 'driven out by force through armed men' from some place or other: if not from the place to which he wanted to go, then assuredly from the place from which he fled."   "What of that?"   "The praetor," he replied, "issued an injunction ordering that he be restored 'to the place from which he had been driven out,' any place, that is, from which he had been driven out. Now since Aebutius admits that Caecina was driven out from some place or other, he must inevitably have made a bad wager in answering that he had restored him." [81] Well, Piso, does it please you to join issue with me over words ? Does it please you to make the course of justice and equity, the right to possession - not only my client's but absolutely everyone's - turn upon a word? I showed you what my opinion was, what was the practice of our forefathers, what course was consistent with the dignity of those who must decide our case: how that truth, justice and the general good combine to demand that we consider not the exact terms in which any particular law was framed but its purpose and its intention. You challenge me to a discussion of the terms : I will not accept without first lodging my objection. I say that your position is wrong: I say that it is untenable: I say that no law can possibly be adequate either in its terms or its provisions or its exceptions if through some word being either omitted or used in an ambiguous context, and despite the substance and intention of the law being obvious, it is to be interpreted according to the words which it employs and not according to the meaning it conveys.

[29.] L   [82] Now, since I have lodged my objection plainly enough, I take up your challenge. I ask you, was I driven out? Not indeed from the estate of Fulcinius, for the praetor did not order that I be restored "if I had been driven out from the estate," but "to that place from which I had been driven out." I was driven out - driven from my neighbour's adjoining estate, through which I was making my way to the estate in question; driven from the road; driven out, assuredly, from some place or other, whether private or public. To that place the injunction has ordered that I be restored. You have asserted that you have restored me : I assert that I have not been restored in accordance with the praetor's order. What are our arguments? Your case is doomed to fall, either by your own sword, as the saying is, or by mine. [83] If you take refuge in the meaning of the injunction and say that we must inquire which farm was meant when Aebutius was ordered to restore me; if you think it wrong that the arm of justice should be caught in a noose of words, then you are sheltering in my camp and behind my ramparts. That line of defence is mine - mine, I say! It is I who cry aloud, I who call Heaven and Earth to witness that since our forefathers made no provision under cover of which the use of armed force could be defended at law, the court is not concerned with the footprints of the man who was driven out but with the action of the man who drove him out: that a man is driven out who has been put to flight, and that a man is subjected to force who has been put in danger of death. [84] But if on the other hand you abandon this position and shrink from holding it: if you challenge me to exchange what I may call the open field of equity for the crooked ways of verbal subtlety and all the obscurities of the letter, you will find yourself caught in just those snares which you are trying to set in my path. "I did not drive you out, I drove you back" - you think this is very smart: it is this that gives point to your defence; and upon this very point your case is doomed to fall! For my answer is: '' If I was not driven out from the place which I was prevented from reaching I was none the less driven out from the place which I did reach and from which I fled. If the praetor has given orders that I be restored, without specifying to what place, then I have not been restored in compliance with his order."

[85] If, gentlemen, all this part of my argument seems to you less straightforward than my pleading usually is, I hope you will take into consideration first that it was not I but someone else who devised it; and further that, so far from having originated I do not even approve of it - I use it, not to support my plea but to answer theirs - and that I have the right to say that neither in the particular instance I quoted ought we to be asking what were the actual terms in which the praetor framed his injunction but what was the place intended when he framed it, nor in any case of "force used by armed men" should we ask where it was used but whether it was used ; but that you, Piso, on the other hand, have no sort of right to plead that the actual terms should be considered where it suits you but not where it does not suit you.

[30.] L   [86] But at the same time, is there any possible answer to the statement I have just made, that not only the substance and the meaning of this injunction but even the terms in which it is framed are such as to leave no alteration desirable ? Listen carefully, I beg you, gentlemen ; for men of your capacity will recognise, not my foresight, but that of our forefathers ; for what I am about to say is nothing that I have discovered but something that they did not fail to see. They realised that an injunction dealing with the use of force might be called for by two sets of circumstances - one being a claim by somebody that he had been forcibly driven out from the place in which he had been, the other, from the place to which he was going : one or the other of these cases may arise, gentlemen, but there is no third possibility. [87] Now examine this point further. If anyone drives my household from my estate, he drives me out of it ; if anyone meets me with armed men outside my estate and prevents my entering it, he does not drive me out of it but away from it. To cover both these sets of circumstances, our forefathers devised one word calculated adequately to express both, in order that whether I be driven out of my estate or away from it, one and the same injunction might restore me to it, the one beginning "whence you . . ." The word "whence" covers the two cases, both the place out of which and the place away from which I was driven. Whence was Cinna driven ? ** Out of the city. Whence Telesinus? Away from the City. Whence were the Gauls driven? Away from the Capitol. Whence the followers of Gracchus ? Out of the Capitol. [88] So you see that the single word "whence " covers two things, the place out of which and the place away from which. Now, in ordering restitution "to that place," the injunction does so in the sense that, if the Gauls had demanded of our ancestors to be restored to the place from which they had been driven out and had somehow had the force to gain their point, they would, in my opinion, have had to be restored not to the underground passage by which they had attacked the Capitol but to the Capital itself. For this is plain: "whence you have driven out" means either "out of any place" or "away from any place."   "Thither thou shalt restore " : this too is clear - you must restore to the actual place: if you have driven a man out of this place, restore him to this place; or if you have driven him away from this place, restore him to the actual place, not out of which, but away from which he was driven. For instance, if a man on a voyage had come near his own country but had been suddenly driven back from it by a storm and were to wish that since he had been driven away from his country he might be restored to it, he would, I think, be wishing that fortune might restore him to the place away from which he had been driven - not indeed to the sea, but to the actual city for which he was making. In the same way (for we are compelled to use analogies in order to catch the exact significance of words) a man who demands to be restored to the place away from which, that is, " whence " he has been driven, is demanding to be restored to the actual place itself.

[31.] L   [89] Not only do the words of the injunction lead us to this conclusion ; the facts as well compel us to adopt this view and this interpretation. In truth, Piso (and here I return to the point I raised at the beginning of my speech), if anyone drives you out of your house by force through armed men, what will you do? I suppose you will proceed against him by this same injunction which we have employed. Well, and what will you do if someone prevents you by means of armed men from entering your home as you are returning to it from the forum? You will employ the same injunction. When, therefore, the praetor issues an injunction ordering that you be restored to the place from which you have been driven out, you will put the same interpretation on it as I am putting and as ought manifestly to be put ; namely that, since the word "whence" covers both sets of circumstances, and the injunction orders that you be restored "to that place," you have just as much right to be restored to your house if you have been ejected from the forecourt as if you had been ejected from the inside of the house.

[90] And now, gentlemen, as if to remove all doubt that, whether you regard the substance or the letter of the injunction, you ought to give us the verdict, there rises out of the wreck and ruin of my opponent's case the argument that a man can be "driven out" if in possession at the time but cannot possibly be so if not in possession ; and accordingly, that if I am driven out of your house, I have no claim to restitution, but that if you are driven out yourself, you have. Count the flaws in that argument, Piso! And observe first of all that you have been forced to abandon your principle that, as you maintained, no one can be driven out except from the place in which he was at the time. You now admit that he can, but say that a man cannot be driven out if he is not in possession. [91] Why, then, in the ordinary form of the injunction? beginning "Whence he has driven me out by force," are the words added, "I being in possession at the time," if no one can be driven out unless in possession? And why are they not added in the case of the present injunction "concerning armed men," if the question of possession is relevant? You say '' No one is driven out if he is not in possession ": I prove that if anyone is driven out, but not by means of men armed and collected together, then the man who admits having driven him out wins the wager-at-law ** if he can prove that the other was not in possession. You say: "No one is driven out if he is not in possession." I prove that under the terms of the injunction "concerning armed men," a man who can prove that the person driven out was not in possession, is none the less certain to lose his wager if he admits that the other was driven out.

[32.] L   [92] There are two ways in which people are driven out, either without the employment of men collected together and armed or by the employment of force in some such way. To meet the two different cases, two separate injunctions have been framed. In the case of the ordinary employment of force, it is not enough for a claimant to show that he bas been driven out unless he can prove that he was in possession at the time he was driven out. And even that is not sufficient unless he can show that his possession arose neither from force, fraud, or favour. And so it is quite usual to hear a man, who has replied to the injunction "I have restored," openly admitting that he did drive out by force but adding at the same time, "He was not in possession." And further, after admitting even the fact of possession, he still wins this wager-at-law if he makes it clear that his opponent had obtained possession from him either by force, fraud, or favour. [93] Do you see how many lines of defence our forefathers placed at the disposal of a man who uses force but without recourse to arms or a multitude? But as for my opponent who, forgetful of law, duty and decency, betook himself to the sword, to arms, and to murder, you see that they left him to plead his cause naked and defenceless, in order to show that one who had armed himself to contend for possession must come disarmed to settle a wager-at-law. Is there, then, any difference between these injunctions, Piso ? Does it make any difference whether or not our injunction contains the additional clause "Aulus Caecina being in possession"? Do the principles of law, the point of difference between the injunctions, the intention of our forefathers, make any impression on you? Had the clause been added, your point would have been a relevant one. It was not added: shall the point be relevant still ?

[94] In this particular, I am not defending Caecina : for Caecina, gentlemen, has possession ; but although it is outside my case I will briefly deal with the question in order to make you no less anxious to protect the person of my client than you are to protect the rights of the public. You, Aebutius, do not deny that Caesennia had possession by virtue of her life interest. Now since the tenant who had the farm on lease from Caesennia maintained his tenure by virtue of that same lease, is there any doubt that, if. Caesennia had possession during the tenure of the lessee, her heir after her death had the same title to possession? Further, when Caecina came to this estate as he was going the round of his property, he received a statement of account from this tenant ; and there is evidence to prove it. [95] Why, subsequently, did you, Aebutius, serve Caecina with notice to quit this particular farm rather than any other you may have, if Caecina had no possession ? Why, moreover, did Caecina himself consent to being formally ejected, as he had informed you in the answer which he gave on the advice of his friends and of Aquillius himself?

[33.] L   But, you may say, there is Sulla's law. Without a single reflection on the days of Sulla or the calamity that then overwhelmed the country, my answer to you is this: that there was a clause added to this same law by this same Sulla to the effect that "if this statute contain any proposal contrary to law, that proposal be null and void." What is there which it is unlawful to propose or which the people cannot command or prohibit ? Without digressing too far, this very additional clause shows that there is such a thing : for if there were not, this clause would not be appended to all statutes. [96] But I ask you: if the people command me to be your slave or you mine, do you think that command would be binding and valid ? You realise and you admit that it would be null and void. And in doing so you first of all concede that not everything which the people command ought to be valid ; and in the second place you advance no reason why, if liberty cannot possibly be taken away, citizenship can. For we have inherited the same tradition with regard to both, and if once it is possible to take away citizenship it is impossible to preserve liberty. For how can a man enjoy his rights to the freedom of a Roman citizen if he is not among the number of Roman citizens? [97] I established this point as quite a young man when I was opposed by Gaius Cotta, the most learned man in Rome. I was defending the freedom of a woman of Arretium ; and Cotta worked upon the scruples of the court, ** telling them that they could not give us their verdict ** because the people of Arretium had lost their citizenship ; while I argued with great vigour that it was not possible for them to lose it. The court did not come to a decision at the first hearing, but after a thorough examination and discussion of the case, they subsequently gave us their verdict ; and they gave it us though Cotta opposed it and Sulla was still alive. But why indeed should I quote you further instances of people in the same position taking legal proceedings, vindicating their rights and availing themselves of the whole body of citizen law ** without anyone, magistrate or juror, lawyer or layman, casting doubts on their rights to do so? Not one of you feels any doubt.

[98] There is certainly one question which, as I am well aware, is constantly asked (and here, Piso, I propose to supply the arguments which do not occur to you) : "How is it that, if citizenship cannot be lost, our citizens have often joined Latin Colonies ?"** They have done so either of their own free will or to avoid a penalty imposed by law: had they been willing to undergo the penalty, they could have remained within the citizen body. [34.] L   Again, when anyone is surrendered by the pater patratus {Chief Priest of the Fetial College}, ** or sold as a slave by his own father or by the state, what justification is there for the loss of his citizenship? A Roman citizen is surrendered to save the honour of the state: if those to whom he is surrendered accept him, he becomes theirs ; if they refuse to accept him, as the Numantines did Mancinus, ** he retains his original status and his rights as a citizen. A father, by selling a son of whom he has assumed control, ** frees him from his control. [99] So too the state, by selling a man who has evaded military service, does not take away his freedom but decrees that one who has refused to face danger for his freedom's sake is not a free man. By selling a man who has evaded the census, the State decrees that, whereas those who have been slaves in the normal way gain their freedom by being included in the census, one who has refused to be included in it although free, has of his own accord repudiated his freedom. **

Now if these are the special grounds on which citizenship and liberty can be lost, do those who quote them fail to understand that our forefathers, by intending that loss of liberty should be possible in these circumstances, intended that it should be impossible in any others? [100] For as they have produced these instances from our law, I wish they would also produce instances in which people have been deprived of their citizenship or their liberty by any statute or proposal. For the position with regard to exile is transparently clear. Exile is not a punishment : it is a harbour of refuge from punishment. Because people want to escape from some punishment or catastrophe, they "quit their native soil," ** that is to say, they change the place of their abode. And so, in no statute of ours will you find, as you will in the laws of other states, that exile figures as the punishment for any crime at all; but people seeking to avoid imprisonment, death, or dishonour, when imposed upon them by our laws, take refuge in exile as in a sanctuary. Should they consent to remain within the citizen body and submit to the rigour of the law, they would lose their citizenship only with their lives. But they do not consent ; and therefore their citizenship is not taken from them, but is by them abandoned and discarded. For as no one under our law can be a citizen of two states, citizenship of Rome is actually lost at the moment when the runaway becomes an exile, that is, a member of another state.

[35.] L   [101] Now, gentlemen, though I fail to mention very many points in connexion with this right of citizenship, I do not fail to see that I have been led on to speak about it at greater length than consideration for your verdict demanded. But I have done so, not because I thought that in this case you would look for this particular defence, but in order to bring it home to everybody that citizenship has never been and can never be taken away from any man. I wished all men to know this - both those whom Sulla intended to injure and all other citizens as well, whether the old or the new. ** For if it has been possible to take away his citizenship from any newly created citizen, no argument can be advanced to show why it should not be taken away from all patricians, all the citizens of oldest creation. [102] How irrevelant are such considerations to the present case may be understood first from the fact that this question is not the one which you are called upon to decide ; and second, from Sulla's own law dealing with the citizen rights of these communities, which was so framed as not to deprive them of their rights of contract and of inheritance. The law enacts that they are to have the same rights as the people of Ariminum, which, as everybody knows, was one of the Twelve Colonies ** and had the right to inherit under the wills of Roman citizens. But even had it been possible to take away Aulus Caecina's citizenship by statute, it would be more natural for us to be concerned, as good citizens, in finding some way to free from injustice and retain among our number the most estimable and respectable of men, eminent as he is for wisdom, for goodness and for the respect which he commands at home, than that now, when it has proved impossible for him to be deprived of a single one of his citizen rights, anyone should be found, unless your match, Sextus, in folly and effrontery, to assert that my client's citizenship has been taken from him.

[103] Inasmuch, gentlemen, as he has not abandoned his rights nor yielded aught to the effrontery and insolence of his opponent, henceforward he commits his case, which is yours as well, and the rights of the people, to your sense of honour and of duty. [36.] L   Such is his character, such has he ever wished to be found by you and by men like you, that his one object in this case and his single aim has been to avoid losing by remissness the right that is his; and that he is equally afraid of appearing either to treat Aebutius with contempt or to be so treated by him. [104] Wherefore, if something is due to a man's merits apart from those of his case, you have in him a man of unusual moderation, of distinguished character and approved loyalty, bearing the most honourable name in all Etruria, and distinguished, alike in good fortune or ill, by abundant evidence both of a manly and a humane character. Should there be, on the opposite side, something in the man that causes offence, you have there one who, to say nothing more, admits that he collected his forces together. But if you set personalities aside and consider the case by itself, then, since you are to pass judgement upon the question of force, since he who is accused of it admits that he employed force by means of armed men, since he endeavours to defend himself by the letter and not the spirit of the law, and since you see that the protection even of the letter has been torn from him, that the most learned authorities are on our side, that, though this case does not raise the question of Caecina's possession, possession none the less is shown to have been his, and that, though the question of Caecina's ownership is still less a relevant issue, I have established the actual fact of his ownership ; since all this, I say, is so, make up your minds what verdict you are called upon to pass by considerations of public policy upon the employment of armed men, by his own admission upon the use of force, by our conclusion upon the claims of equity, and by the spirit of the injunction upon the legal issue.


24.(↑)   Compare Lucretius, i. 832, "patrii sermonis egestas." Cicero always denies the "poverty of our native tongue."

25.(↑)   A special court of 105 persons chosen annually for the hearing of civil suits, especially those dealing with inheritance.

26.(↑)   Cicero was called in 93 B.C.

27.(↑)   Quintus Mucius Scaevola, the Pontifex Maximus (see § 67), of whom Cicero had been a devoted pupil.

28.(↑)   A posthumous son, in the Roman sense, was one born after the father's will had been made, and not necessarily after his death.

29.(↑)   That is, through the particular estate over which he has a right of way.

30.(↑)   Appius Claudius Caecus, the famous censor in 312 B.C., who was blind.

31.(↑)   A boy attained his majority at fourteen.

32.(↑)   See first note on § 23.

33.(↑)   See first note on § 23.

34.(↑)   'Armorum iudicium' was the title of a play by Pacuvius, Cicero's allusion to which would have been understood by his audience.

35.(↑)   The injunction 'de vi armata' specifies 'hominibus armatis' (armed men). Cicero imagines his assailant pleading that, in order to make these words applicable to him, either some other (presumably unarmed) men were included as "armed" or his single self was referred to as plural.

36.(↑)   It was customary for eminent lawyers, 'iuris consulti', to sit in the Forum and give their advice ('ius respondere') to those who consulted them. In imperial times qualified persons were granted the 'ius respondendi', and their rulings were recognized as authoritative.

37.(↑)   The saying was '' Summum ius, summa iniuria."

38.(↑)   See note on § 65.

39.(↑)   See § 53.

40.(↑)   This is Quintus Mucius Scaevola, the Pontifex Maximus, an eminent jurist (see note on § 53).

41.(↑)   Manilius was a famous jurist whom Cicero often mentions.

42.(↑)   This is Quintus Mucius Scaevola, the augur, also a famous jurist.

43.(↑)   A trustee was required by Roman law for women (and minors, etc.) whose father was dead; his sanction was required for any obligation which his ward wished to contract.

44.(↑)   Fidiculanius Falcula, see § 28 and 29 and notes.

45.(↑)   Mancipium, an ancient form of conveyance, for the transfer of 'res mancipi', that is, everything which in those early times was regarded as valuable (land, stock, slaves, etc.).

46.(↑)   The allusions are to:   (1) Cinna, a supporter of Marius, driven out of Rome during his consulship in 87 B.C. by his colleague, a supporter of Sulla.   (2) Telesinus, leader of the Samnites, who were defeated by Sulla outside the Colline gate of Rome in 82 B.C.   (3) The Gauls, repulsed, according to Cicero, in 390 B.C., but Livy's account differs.   (4) Tiberius Gracchus and his followers, who had taken refuge in the Capitol, whence they were dragged by the forces of the Senate and murdered 133 B.C.

47.(↑)   See note on § 23.

48.(↑)   A special court for trying cases connected with citizenship.

49.(↑)   The 'sacramentum' originally meant a sum of money paid into court by each of the parties to a suit and at its conclusion forfeited by the loser. Here the word means the suit itself.

50.(↑)   See note on § 34.

51.(↑)   On joining a "Latin colony," a Roman citizen suffered a partial loss of status ('capitis diminutio minor'), i.e. he lost his citizenship but recovered, as a Latin, some of his citizen rights: these varied from time to time.

52.(↑)   The high priest of this college concluded with the enemy ('patrare', to conclude) under religious forms matters relating to peace and war.

53.(↑)   Mancinus was surrendered to the Numantines in 137 B.C. in order to free Rome from the obligation of ratifying the treaty which he had concluded with them.

54.(↑)   The reference is to the formal "taking up" of a newly born infant by the father who thus acknowledged and assumed control ('potestas') of him. The selling of a son three times by his father, which, according to the Twelve Tables, freed him from this control, developed later into a legal fiction.

55.(↑)   One of the forms of legal manumission was the entry of the slave's name on the censor's lists as a citizen.

56.(↑)   Cicero thought (probably wrongly) that the word 'exilium' (exile) contained the same root as 'solum' (soil).

57.(↑)   That is, those Italians included in the citizen body after the Social War 91-88 B.C.

58.(↑)   These were probably twelve communities which, having received the citizenship after the Social War, were deprived by Sulla of the 'ius connubii', the right of contracting a marriage valid under Roman law, while retaining the right of contract ('ius commercii') which Cicero divides into its chief constituent elements - 'nexa', the right to acquire property, and 'hereditates', the right to inherit under a citizen's will.

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